Treaty of Point Elliott - Context

Context

The Nonintercourse Act of 1834 specifically prohibited White American intrusion into Indian territories. The Oregon Donation Land Claim Act of 1850 opened Oregon Territory; Washington Territory had similar law. The law sunset 1 December 1855; settlers had to file by that date, so White leaders had incentive to get treaties signed as speedily as possible. Each male settler could homestead and receive 160 acres (0.65 km2) free for himself and 160 with his wife (women could not individually hold property). Settlers arriving before 1850 could receive 640 acres (2.6 km2), or 1 Regular Section, one square mile. No explanation has been provided for how this property could be titled before Indian claims were extinguished. The effective means of doing so was by unilateral occupation, implicitly backed by militia if not military. The response was disconcertion, sometimes as extreme as raids and uprisings.

The headlong pace of Westward Expansion and Manifest Destiny by American exceptionalism throughout the 19th century effectively precluded other than a freebooter development model.

By and large, Native leaders were willing to sell (having at the time no cultural comprehension of individuals or people owning land), but they were very unwilling to move out of Puget Sound country.

The courts have said that the power of Congress in Indian affairs is plenary (full and complete)—great but under present law not absolute. The federal government and tribes are co-equal sovereign entities; the tribal governments predated the existence of the United States. One of the basic principles underlying Indian nations is that they retain all the inherent powers of any sovereign nation, retaining all original sovereign rights and powers which have not been given up or taken away by due process of law. Courts have ruled that the "intent of Congress to limit the sovereign powers of Indian governments by legislation must be clearly expressed in the law in order to be effective" (in legal terminology, per Saito, Georgia State University College of Law).

This leaves many of the mid-19th century treaties in an interesting legal status.

The U.S. Constitution, Article 6, states:

This Constitution, and the laws of the United States which shall be made in persuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

(Treaties must comply with the Constitution.) Treaties are international agreements by definition. The Supreme Court has ruled that there are "canons of construction" for interpreting treaties; of the two principal canons, one is that they are to be interpreted as they would have been understood by the signatories. The Supreme Court has ruled, in a manner remarkably like the Bill of Rights, Tenth Amendment, that "Treaties are to be construed as a grant of rights from the Indians, not to them—and a reservation of those not granted."

A treaty broken is not rescinded. Only a following treaty or agreement can relieve signatories of the original treaty. When the U.S. breaks a treaty, doing so reflects upon the integrity of the country. "Treaties are as old and as venerable as the Constitution of the United States. Age does not impair their validity or legality."

Indian tribes, for the most part, were not parties to and rarely agreed with the diminution in their sovereign powers by the laws of the colonizer and the alien tradition of European law. With significant justification they often claim to retain far greater sovereign powers than federal Indian law is prepared to concede. The resulting political dynamic is of tensions and disputes among tribal, federal, and state governments about sovereign powers and jurisdiction denied to tribes by the colonial justifications underlying federal law, which tribes and members point out they never voluntarily surrendered. Diminution of sovereignty is usually absent from accession of lands.